(Legal) Truth or Consequences

I’m still putting together some more for my previous series, but in the mean time:

Since starting my current job (where I primarily analyze how to solve operational problems), when I hear a public policy debate, my first question is always something along the lines of “will this solution work?”

However, there seem to be many people whose first question is “is it Constitutional (or otherwise legal)?”.

On the one hand, I think the “will it work?” question is good to establish first, because then you could potentially use the answer to change the law/amend the Constitution.

On the other hand, I generally believe the Constitution was set up to protect us from a variety of natural consequences from particular legislative overreaches….so perhaps the Constitution question is the more important one and I’m just projecting because of what I do for work.

Obviously the ideal is to consider both, but it seems to me that many people have a knee jerk reaction to consider one or the other first. And no, I’m not considering people who seem to not consider EITHER the usefulness OR the legality….though their number is legion. This question came up because of the recent events at Sandy Hook, but this doesn’t need to be limited to the gun control debate.

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5 thoughts on “(Legal) Truth or Consequences”

I think you are absolutely correct about the ideal. It should work and be constitutional. I think there are many a congressperson who regrets their vote on the Patriot Act (with the exception of Russ Feingold). In retrospect, there are many sections of that act that are likely unconstitutional and they haven't worked particularly well. (Yes, I know the “there hasn't been a terrorist attack on US soil since it was enacted” argument). The Patriot Act and legislation reacting to the Sandy Hook situation fall under the category of “well, we have to do something”, which tends to ignore both of your critical questions. As a parent, you want to do everything you can to protect your children, but, guess what? The world has other ideas. So, to answer your direct question, I think the first analysis should be “will it work” and, if you answer that in the affirmative, then look at the constitutional issue. To do it the other way around is a waste of energy.

You have to look at the bigger picture when you ask “Will it work?” because there are always unintended consequences. If you know something about the side effects before you even know if the option will “work” you may decide against it. “Will it work?” may take years of study (as opposed to split seconds of knee-jerk).

The Patriot Act is a great example. A lot of it was natural extensions of stuff we were already doing – but even that had not passed a rigorous “does it work” test. It became a grab-bag of stuff-we-think-might-work. Worse, such grab-bags often acquire practices that one government agency or another has had on their wish-list for years, but is a significant overreach. That third question must be asked as well: What else do you plan to throw in there?